Bombay High Court
Prafulla S/O Narhar Wagh And ... vs Govind S/O Narayan Pimpalkar on 8 June, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Civil Revision Application No. 32 of 2017
Applicants : 1. Prafulla s/o Narhar Wagh, aged about 54
years, Occ: service,
2. Dr Mrs Snehal w/o Prafulla Wagh, aged
about 52 years, Occ: service
Both residents of Jaiprakash Nagar, Nagpur
versus
Respondent : Govind son of Narayan Pimpalkar,
aged about 65 years, resident of Plot No. 57,
Janki Nagar, Nagpur
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Shri Sanjay Patrikar, Advocate for applicants
None appears for respondent
Coram : S. B. Shukre, J
Dated : 8th June 2017
Oral Judgment
1. Heard learned counsel for the applicants at length. None appears
for the respondent. Admit. Taken up for final hearing pursuant to the order
dated 29th March 2017.
2. By this revision application, legality and correctness of the order
passed on 26.10.2016 below an adjournment application (exhibit 71) by the
Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 850 of 2009 has
been questioned.
3. Shri Patrikar, learned counsel for the applicants has taken me
through the series of applications filed for adjourning the suit by the
respondent which are forming part of paper book of this revision application.
These applications are dated 17.6.2016 (exhibit 59), dated 30.8.2016 (exhibit
62), dated 20.9.2016 (exhibit 63D), dated 6.10.2016 (exhibit 65) and dated
21.10.2016 (exhibit 68). All these applications were filed by the respondent for
seeking adjournment. First application (exhibit 59) was filed on the ground of
non-availability of the respondent in town as he was on pilgrimage. Second
application (exhibit 62) was filed on the ground that the respondent was
suffering from viral fever. Subsequent applications (exhibits 63D, 65 and 68)
were also filed on the same ground as illness of the respondent. No medical
certificates were filed and no effort was made by respondent to demonstrate
that the ground taken in all these applications was genuine. The trial Court, it
appears, was extremely kind to the respondent/plaintiff in allowing all his
applications despite his showing no inclination to support the ground taken by
repondent in these applications. Application (exhibit 63D) was not opposed,
but a prayer was made by the applicant for imposing costs of Rs. 5000/- upon
the respondent. The order was passed allowing the said application, by way of
last chance, subject to payment of meagre costs of Rs. 200/-.
4. One would think that once last chance was granted, the Court
would be careful enough not to further adjourn the matter as there is no
question of giving any more chance after last chance has been granted. But, the
trial Court was kind enough to the respondent and chose to grant him further
last chance when it allowed subsequent application (exhibit 65) subject to
payment of costs of Rs. 300/-. This time, the trial Court gave a direction to the
respondent that if he did not make himself available, appropriate order will be
passed. With such a direction in place, one would be rest assured that on
plaintiff's failure to appear on the next date the "appropriate order" will be the
dismissal of suit. However, that was not to be as the orders passed on
subsequent dates disclose.
5. Such an attitude of the trial Court only emboldened the
respondent to be even more brazen in seeking adjournments as he filed yet
another application on 21.10.2016 giving the same ground as the earlier one.
The trial Court allowed this application also giving the same direction that if
the plaintiff (present respondent) did not make himself available before the
Court for cross-examination, the suit would be dismissed.
6. It appears, the respondent had complete idea what the trial Court
would do to his suit even if he filed yet another application for adjournment and
trial Court it appears from the order impugned in this revision application,
which is the order passed below application for grant of adjournment (exhibit
71) dated 26.10.2016, did not disappoint the respondent. The trial Court
allowed even this application by only observing that the adjournment was being
granted as a last chance subject to payment of costs of Rs. 500/- with a
direction, in case of failure, appropriate orders will be passed. All these orders
passed by the trial Court in the absence of any proof being produced before it in
support of ground of illness taken in the adjournment applications only exhibit
complete disregard of the mandate of the provisions of Order XVII, Rule 1 of the
Code of Civil Procedure. Time and again this Court as well as the Hon'ble Apex
Court have held that adjournments should not be granted on the mere asking,
but on "justifiable cause". The Apex Court in its judgment delivered in Civil
Appeal No. 7532 of 2011 (M/s Shiv Cotex v. Tirgun Auto Plast P. Ltd. & ors) on
30th August 2011 has observed -
"When we say 'justifiable cause' what we mean to say is, a cause
which is not only 'sufficient cause' as contemplated in sub-rule (1)
of order XVII CPC but a cause which makes the request for
adjournment by a party during the hearing of the suit beyond three
adjournments unavoidable and sort of a compelling necessity like
sudden illness of the litigant or the witness or the lawyer; death in
the family of any one of them; natural calamity like floods,
earthquake etc. in the area where any of these persons reside; an
accident involving the litigant or the witness or the lawyer on way
to the court and such like cause."
7. Besides above, it is equally well settled law that sufficient cause is
something which is beyond the control of the party seeking adjournment and
certainly the Advocate being busy in another Court is not a circumstance which
is beyond the control of such party as held by this Court in the case of Dhanraj
Lilaram Motwani & anr v. Rajendra Kumar Dayachand Jain & ors reported
in AIR 1996 Bombay 3.
8. However, as stated earlier, the impugned order ignores these well-
settled principles of law. With regret, I may add that the impugned order turns
a blind eye to the own orders of the trial Court when the trial Court
categorically observed at least on two occasions i.e. on 6.10.2016 and
21.10.2016 that appropriate orders will be passed or suit will be dismissed.
9. The trial Court, instead of following law settled by the Hon'ble
Apex Court and following the spirit of its own earlier orders, has granted
adjournment by the impugned order and, therefore, such an order would have
to be held as manifestly perverse as well as contrary to the settled principles of
law. Such an order must go and the conduct of the respondent would
necessitate passing of further order of dismissal of suit.
10. Application is allowed with costs. The impugned order is quashed
and set aside. Adjournment application (exhibit 71) stands rejected. Suit
stands dismissed with costs.
S. B. SHUKRE, J
joshi
